Citation Nr: 0307518
Decision Date: 04/21/03 Archive Date: 04/30/03
DOCKET NO. 02-13 034 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Manila,
the Republic of the Philippines
THE ISSUES
1. Entitlement to service connection for the cause of the
veteran's death.
2. Entitlement to accrued benefits.
3. Entitlement to non-service-connected death pension
benefits.
ATTORNEY FOR THE BOARD
L. M. Davis, Associate Counsel
INTRODUCTION
The veteran had recognized service with the Philippine
guerillas from May 1945 to August 1945.
This case comes before the Board of Veterans' Appeals (the
Board) on appeal from a December 2001 rating decision of the
Manila, Republic of the Philippines, Department of Veterans
Affairs (VA) Regional Office (RO). The RO denied service
connection for cause of the veteran's death and determined
that the appellant had no legal entitlement to accrued or
death pension benefits.
The Board notes that the RO indicated in a letter to the
appellant accompanying the December 2001 rating decision that
her claim for dependency and indemnity compensation (DIC)
also included the issue of DIC under the provision of
38 U.S.C.A. § 1318. The RO noted that action on the issue of
DIC under 38 U.S.C.A. § 1318 would not be made until
completion by VA of required rulemaking as mandated by the
U.S. Court of Appeals for the Federal Circuit (the Court).
The RO added that as soon as the stay was lifted, a decision
would be made on this issue and the appellant would be
notified of that decision. In a recent decision, the Court
lifted this stay and the RO is now free to adjudicate the
issue of entitlement to benefits under Section 1318. See
National Org. of Veterans' Advocates, Inc. v. Secretary of
Veterans Affairs, 314 F.3d 1373 (Fed. Cir. 2003) (NOVA II).
Thus, the Board refers this issue to the RO for appropriate
adjudication.
FINDINGS OF FACT
1. The veteran died on May [redacted]
, 1989. The cause of death was
listed as cardio-vascular shock, hemorrhage, complicated
peptic ulcer with perforations.
2. At the time of the veteran's death, he was not service
connected for any disability.
3. There is no competent evidence that establishes a nexus
between the veteran's cause of death and service.
4. At the time of the veteran's death, he had no pending
claims for entitlement to any VA benefits.
5. The veteran had recognized guerilla service from May 1945
to August 1945.
CONCLUSIONS OF LAW
1. A disability incurred in or aggravated by service did not
cause or contribute substantially or materially to the cause
of death. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1310,
5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309,
3.312 (2002).
2. The appellant's claim for entitlement to accrued benefits
is without legal merit. 38 U.S.C.A. § 5121 (West 2002);
38 C.F.R. § 3.1000 (2002).
3. Basic eligibility for VA non-service-connected disability
pension benefits is not established. 38 U.S.C.A. §§ 101(2),
107(a), 1521, 1541, 5103A, 5107 (West 2002); 38 C.F.R.
§§ 3.1, 3.3, 3.203 (2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. VCAA
On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No.
106-475, 114 Stat. 2096 (2000). This law redefines the
obligations of VA with respect to the duty to assist and
includes an enhanced duty to notify a claimant as to the
information and evidence necessary to substantiate a claim
for VA benefits. The final rule implementing the VCAA is
codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)
(2002).
This change in the law is applicable to all claims filed on
or after the date of enactment of the VCAA (November 9,
2000), and to claims filed before the date of enactment but
not yet final as of that date. See 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); Karnas v.
Derwinski, 1 Vet. App. 308, 312-13 (1991); cf. Dyment v.
Principi, 287 F.3d. 1377 (Fed. Cir. 2002) (holding that only
section four of the VCAA, amending 38 U.S.C. § 5107, was
intended to have retroactive effect).
First, VA has a duty to notify the appellant of the evidence
and information necessary to substantiate her claim. See
38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)
(2002); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In
a January 2001 letter to the appellant, the RO indicated that
in order to establish service connection for cause of death,
it must be shown that a disease or disability related to
service caused the veteran's death or contributed
substantially or materially to the death-causing conditions.
In addition, the RO informed the appellant that death pension
was payable to a surviving spouse when the death of the
veteran with wartime service was not due to service, provided
income was within applicable limits. However, the RO also
informed the appellant that death pension was not payable to
survivors of veterans who served as members of the Philippine
Commonwealth Army, recognized guerrillas, and new Philippine
Scouts. The RO indicated that it needed a true copy of the
veteran's death certificate bearing the signature and seal of
the local civil registrar, a certified true copy of the
appellant's marriage certificate bearing the signature and
seal of the local civil registrar or custodian of public
records, the names, addresses, and approximate dates of
treatment for all VA and non-VA health care providers who had
treated the veteran for the conditions that caused death, or
for the disease or disability that contributed to the death-
causing conditions. The RO specified that it was
particularly interested in treatment provided from the date
of discharge from service to the date of death. The RO also
indicated that the appellant could submit a statement from a
health care provider who treated or examined the veteran
during his lifetime and could support, by sound medical
opinion, an interconnecting relationship between the
veteran's cause of death and his military service.
In addition, in an April 2001 VCAA letter to the appellant,
the RO indicated that in order to establish entitlement to
service-connected death benefits, the evidence must show (1)
the cause of death, which was usually shown on the veteran's
death certificate, (2) an injury, disease, or event in
service, which was usually shown in service medical records,
and (3) a relationship between the cause of death and the
injury, disease, or event in service, which was usually shown
by the death certificate or in other medical records or
medical opinions. The RO requested that the appellant
provide a statement from Dr. Mallillin, who had certified the
veteran's death, indicating the basis on which he certified
the veteran's death.
Second, VA has a duty to inform the appellant of which
information and evidence she was to provide to VA and which
information and evidence VA would attempt to obtain on her
behalf. In an April 2001 VCAA letter to the appellant, the
RO specified that it would obtain the veteran's service
medical records and other military service records, if
necessary. It also stated that it would try to help the
appellant obtain medical records, employment records, or
records from other Federal agencies, but that the appellant
must give the RO enough information about those records so
that the RO could request them from the appropriate person or
agency. The RO stressed that it was still the appellant's
responsibility to make sure that those records were received
by the RO. In addition, in a July 2001 letter, the RO
notified the appellant that it had requested further
information from Dr. Mallillin, including the veteran's
medical records, and that it was still her responsibility to
make sure that the RO received this evidence in support of
her claim.
Third, VA must make reasonable efforts to assist the claimant
in obtaining evidence necessary to substantiate the claim for
the benefit sought, unless no reasonable possibility exists
that such assistance would aid in substantiating the claim.
In this case VA has obtained the veteran's service medical
records, service personnel records, and the private treatment
records submitted by the appellant. In addition, in July
2001 the RO sent a letter to Dr. Mallillin, requesting that
he forward the veteran's clinical records, including an
autopsy report if available, or any report of examination,
results of diagnostic tests, findings of laboratory studies,
or interpretations of x-ray films. The appellant has not
indicated the existence of any additional records that would
aid in substantiating her claim.
For the reasons stated above, the Board finds that the
requirements of the VCAA have been met.
II. Factual Background
The veteran's service personnel records indicate that he
served in the recognized guerrilla service from May 1945 to
August 1945.
In a May 2001 letter, Dr. Mallillin stated that the veteran
died of cardio-vascular shock due to perforated peptic ulcer.
He stated that medical records available at his clinic showed
that the veteran was a patient since 1969, because of his
chronic peptic ulcer. The doctor stated that the veteran had
claimed that after the war, he had suffered from epigastric
pains and tenderness that became progressive and only
relieved by anti-ulcer and anti-spasmodic medication. He
stated that the ulcer "could have been acquired because of
tension during the war" as a recognized guerilla, that
eventually caused his death.
In an August 2001 letter, Dr. Mallillin stated that his
medical records of the veteran showed no diagnostic tests, no
laboratory studies, nor any x-ray done, because the veteran
was poor and indigent to afford such laboratory examinations.
The physician stated that the veteran was treated on an
outpatient basis, as a case of chronic peptic ulcer, with
frequent acute exacerbations, which were aggravated by
tensions brought about by extreme poverty. The physician
noted that the veteran was given antacids, anti-spasmodics,
vitamin K, and tranquilizers, to which the veteran responded
fairly well from continuous medications from 1969 to 1989.
The physician reiterated that the veteran died of cardio-
vascular shock, due to massive gastro-intestinal hemorrhage
from uncontrolled bleeding peptic ulcers.
III. Criteria
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002). When
any veteran dies after December 31, 1956, from a service-
connected or compensable disability, VA shall pay dependency
and indemnity compensation to such veteran's surviving
spouse, children, and parents. See 38 U.S.C.A. § 1310 (West
2002).
The death of a veteran will be considered as having been due
to a service-connected disability when the evidence
establishes that such disability was either the principal or
the contributory cause of death. See 38 U.S.C.A. § 1310
(West 2002); 38 C.F.R. § 3.312(a) (2002). Service connection
will be determined by exercise of sound judgment, without
recourse to speculation and after a careful analysis has been
made of all the facts and circumstances surrounding the death
of the veteran to include autopsy reports. See 38 C.F.R.
§ 3.312(a) (2002).
Service connection for a peptic ulcer may be granted if
manifest to a compensable degree within one year following
separation from service. See 38 U.S.C.A. §§ 1101, 1110,
1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309
(2002).
Periodic monetary benefits to which a veteran was entitled at
death under existing ratings or decisions, or those based on
evidence in the file at the date of death and due and unpaid
for a period not to exceed two years, shall, upon the death
of such veteran, be paid to the veteran's spouse. See
38 U.S.C.A. § 5121 (West 2002); 38 C.F.R. § 3.1000 (2002).
Applications for accrued benefits must be filed within one
year after the date of death. See id.
The surviving spouse of a veteran is entitled to receive VA
improved nonservice-connected death pension benefits if the
veteran had qualifying service under 38 U.S.C.A. § 1521(j)
(West 2002) or, at the time of death, was receiving or
entitled to receive compensation for a service-connected
disability based on service during a period of war. See 38
U.S.C.A. § 1541(a) (West 2002). The term veteran means a
person who served in the active military, naval, or air
service, and who was discharged or released therefrom under
conditions other than dishonorable. 38 U.S.C.A. § 101(2)
(West 2002); 38 C.F.R. § 3.1(d) (2002). Service before July
1, 1946, in the organized military forces of the Government
of the Commonwealth of the Philippines, including organized
guerilla forces under commanders appointed, designated, or
subsequently recognized by the Commander in Chief, Southwest
Pacific Area, or other competent authority in the Army of the
United States, shall not be deemed to have been active
military, naval, or air service for the purposes of any law
of the United States conferring rights, privileges, or
benefits upon any person by reason of the service of such
person or the service of any other person in the Armed
Forces, except benefits under contracts of National Service
Life Insurance entered into before February 18, 1946; chapter
10 of title 37; and chapters 11 and 13 of this title. See 38
U.S.C.A. § 107(a) (West 2002).
When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the veteran prevailing in either
event, or whether a preponderance of the evidence is against
a claim, in which case, the claim is denied. See Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
IV. Analysis
a. Service connection for cause of death
Based on the evidence of record, the Board finds that the
preponderance of the evidence is against the grant of service
connection for the cause of the veteran's death.
Initially, the Board notes that although the veteran served
in a time of war, the appellant does not allege that the
veteran had previously alleged that cardio-vascular shock,
hemorrhage, or a complicated peptic ulcer with perforations
began in combat. Therefore, 38 U.S.C.A. § 1154(b),
pertaining to proof of service incurrence or aggravation of a
disease or injury in the case of a veteran who engaged in
combat with the enemy, is not for application.
In order to warrant service connection for cause of death,
the evidence must show that an injury, disease, or other
event in service was either the principal or a contributory
cause of death. See 38 U.S.C.A. §§ 1110, 1310 (West 2002);
38 C.F.R. §§ 3.303, 3.312(a) (2002). The cause of death was
listed on the death certificate as cardio-vascular shock,
hemorrhage, and complicated peptic ulcer with perforations.
The veteran's service medical records are negative for
complaints related to the heart, a psychiatric disorder or to
an ulcer. Rather, the cardiovascular and psychiatric systems
were reported as normal. There are no additional medical
records in the veteran's file from the time of his discharge
until the time of his death; i.e., there is no record of any
complaints related to the heart or to an ulcer at any time
during or after service. Dr. Mallillin has indicated in a
letter written after the veteran's death that he treated the
veteran for a chronic ulcer and that the ulcer "could have
been acquired because of tension during the war." The Board
notes that the veteran's service medical records indicate
that a psychiatric diagnosis of the veteran upon discharge
was reported as "normal." Equally important, the Board
notes that there is no evidence of a psychiatric disorder in
proximity to service, within decades of service, or at the
time of death. The Board notes that Dr. Mallillin had
indicated that he had treated the veteran since 1969 until
the time of the veteran's death. The RO requested that the
doctor send any clinical records for the veteran in his
possession, including laboratory reports, x-ray reports,
results of diagnostic tests, or examination reports. The
doctor indicated that there were no such records in his
possession. The Board finds that even though the doctor
stated that the veteran's ulcer "could have been acquired
because of tension during the war," the doctor does not
establish that the veteran had any psychiatric disorder.
Such an unsupported statement has little probative value.
In addition, the Board notes that the appellant has asserted
that the veteran's peptic ulcer was incurred in service. The
Board does not doubt the sincerity of the appellant's belief
in this claimed causal connection. However, as the appellant
has not been shown to be a medical expert, she is not
qualified to express an opinion regarding any medical
causation of the veteran's ulcer or cardio-vascular shock and
hemorrhage, which led to the veteran's death. It is the
province of trained health care professionals to enter
conclusions which require medical expertise, such as opinions
as to diagnosis and causation, and the appellant's lay
opinions cannot be accepted as competent evidence to the
extent that they purport to establish such medical causation.
See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992).
Nor can service connection for a peptic ulcer be granted on a
presumptive basis. Under Section 1101, a peptic ulcer may
warrant service connection if manifest to a compensable
degree within one year following separation from service.
See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002);
38 C.F.R. §§ 3.307, 3.309 (2002). In this case, the first
objective evidence of an ulcer was decades after service.
Thus, service connection for a peptic ulcer cannot be granted
on a presumptive basis.
The Board finds that the preponderance of the evidence is
against any finding of a basis to link the veteran's death
with his period of service. Accordingly, the preponderance
of the evidence is against the grant of service connection
for cause of death, and there is no doubt to be resolved.
See Gilbert, 1 Vet. App. at 55.
b. Accrued benefits
The Board finds that the appellant's claim for accrued
benefits is without legal merit.
Periodic monetary benefits to which a veteran was entitled at
death under existing ratings or decisions, or those based on
evidence in the file at the date of death and due and unpaid
for a period not to exceed two years, shall, upon the death
of such veteran, be paid to the veteran's spouse. See
38 U.S.C.A. § 5121 (West 2002); 38 C.F.R. § 3.1000 (2002).
Applications for accrued benefits must be filed within one
year after the date of death. See id. (italics added).
At the time of the veteran's death, he was not service
connected for any disability. Nor did he have any claims,
formal or informal, pending for a VA benefit. In Jones v.
West, 136 F.3d 1296, 1299 (Fed. Cir. 1998), the United States
Court of Appeals for the Federal Circuit (Federal Circuit)
concluded that for a surviving spouse to be entitled to
accrued benefits, "the veteran must have had a claim pending
at the time of his death for such benefits or else be
entitled to them under an existing rating or decision." The
Federal Circuit noted that this conclusion comported with its
decision in Zevalkink v. Brown, 102 F.3d 1236 (Fed Cir.
1996), wherein the Federal Circuit stated that a consequence
of the derivative nature of the surviving spouse's
entitlement to a veteran's accrued benefits claim is that,
without the veteran having a claim pending at time of death,
the surviving spouse has no claim upon which to derive his or
her own application. See Jones, 136 F.3d at 1300.
In the instant case, the claims file is absent any evidence
that the veteran had a claim pending for any VA benefit at
the time of his death. Accordingly, there is no legal basis
to the appellant's claim for payment of accrued benefits.
Further, the appellant did not file her claim for accrued
benefits within 1 year of the veteran's death. See
38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. She filed her claim
in February 2001, 12 years after the veteran's death in May
1989. As the law, and not the evidence, is dispositive in
this case, entitlement to payment of accrued benefits is
denied due to the absence of legal merit. See Sabonis v.
Brown, 6 Vet. App. 426, 430 (1994).
c. Non-service-connected death pension benefits
The Board finds that the appellant's claim for non-service-
connected death benefits is without legal merit.
The surviving spouse of a veteran is entitled to receive VA
improved nonservice-connected death pension benefits if the
veteran had qualifying service under 38 U.S.C.A. § 1521(j)
(West 2002). The term veteran means a person who served in
the active military, naval, or air service, and who was
discharged or released therefrom under conditions other than
dishonorable. See 38 U.S.C.A. § 101(2) (West 2002) (italics
added); see also 38 C.F.R. § 3.1(d) (2002). Service before
July 1, 1946, in the organized military forces of the
Government of the Commonwealth of the Philippines, including
organized guerilla forces under commanders appointed,
designated, or subsequently recognized by the Commander in
Chief, Southwest Pacific Area, or other competent authority
in the Army of the United States, shall not be deemed to have
been active military, naval, or air service for the purposes
of any law of the United States conferring rights,
privileges, or benefits upon any person by reason of the
service of such person or the service of any other person in
the Armed Forces, except benefits under contracts of National
Service Life Insurance entered into before February 18, 1946;
chapter 10 of title 37; and chapters 11 and 13 of this title.
See 38 U.S.C.A. § 107(a) (West 2002) (italics added).
According to the veteran's service personnel records, the
veteran served as a recognized guerilla from May 1945 to
August 1945. Thus, under Section 107(a), the veteran shall
not be deemed to have had active military, naval, or air
service for purposes of Title 38, Section 1541. See
38 U.S.C.A. § 107(a). See Rivera v. Principi, 2003 U.S. App.
Lexis 6909 (April 10, 2003) (unpublished).
Consequently, the Board determines that there is no legal
basis on which the appellant's claim for non-service-
connected death pension benefits can be based. The veteran
did not have qualifying service under Section 1541. As the
law, and not the evidence, is dispositive, the appeal is
denied due to the absence of legal merit. See Sabonis, 6
Vet. App. at 430. The Board is bound by 38 U.S.C.A. §
107(a), and therefore has no choice but to deny the
appellant's death pension claim. See 38 U.S.C.A. §§ 501(a),
7104(c) (West 2002); 38 C.F.R. § 19.5 (2002).
ORDER
Service connection for the cause of the veteran's death is
denied.
Entitlement to accrued benefits is denied.
Entitlement to non-service-connected death pension benefits
is denied.
____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.